By Ahmad Hathout
OTTAWA – The Federal Court of Appeal has denied an application by Telus that challenged the CRTC’s decision not to regulate wireless access to municipal infrastructure and that forced the carriers to provide seamless roaming to other providers.
Telus argued that the two components of the CRTC’s April 2021 decision – which mandated regional carrier access to the wireless infrastructure of the large players – were made in error. The thrust of the telecom’s argument – which was backed by Rogers and Bell – was that the CRTC too narrowly defined the term “transmission line” under section 43 of the Telecommunications Act to mean only physical wires and not wireless equipment, which it said was not intended by Parliament when it wrote the law to broadly encompass a forward-looking, all-encompassing communications system.
But the Federal Court of Appeal disagreed in a decision posted Thursday. The justices agreed with the interpretation of the Federation of Canadian Municipalities, which was the main opposition to the appeal, that the CRTC took the correct broad contextual view of the Act to determine that Parliament only intended for section 43 to include physical wires because it mentions “transmission facility” elsewhere in the legislation. The reasoning goes that if it intended a broader definition, such as “transmission facility,” it would have included that in the section in question.
“Parliament could have used broader language and moved away from the concept of a line had it wanted to incorporate wireless technology,” the decision said. “This was clearly not an oversight, because as noted by the CRTC, wireless technology was well known at the time. As a matter of fact, a ‘transmission facility’ as defined in section 2 of the Act clearly includes the technologies that transmit telecommunications wirelessly. It refers not only to wire and cable, but also to radio, optical or other electromagnetic systems.”
The court also disputed Telus’s interpretation that a transmission line connotes a path between two points, which doesn’t discriminate on wireless or wireline. But the justices used the “historical origin” of the meaning of line to mean physical constructions – specifically in the case of the Railway Act.
“It is clear from this review of the wording of sections 43 and 44, of the dictionary definitions of “line” in the context of telecommunications, of the use of “line” in the Railway Act and of the mismatch between the notion of a line and wireless technology, that Telus’ submission that a line is to be understood merely as a geometrical path between two points does not sit well with the common understanding of a transmission line, at least as it is used in the Act,” the decision read.
The large telecoms have argued for years about the need for more CRTC authority over access to municipal structures, with delays and denials being common complaints. While the CRTC has broad guidance on municipal access agreements, the provinces have their own legislation to govern that type of access. In fact, the government of British Columbia argued against Telus’s interpretation that wireless equipment should be brought under the term “transmission line.”
In the decision Thursday, the court further backed its argument for the functionality of the legislation by virtue of the fact that B.C.’s access to municipal structures and rights of way are already regulated by the BC Utilities Commission, meaning there’s “no gap” in jurisdiction.
“It appears, therefore, that a system that respects the important role of each stakeholder pays off and is functional,” the court said. “In many respects, municipalities and public utilities regulators are in a better position than the CRTC to coordinate and maintain balance, safety and equitable access to their infrastructure.
“If the past is the guarantor of the future, there is no reason to believe that the carriers and the municipalities will be unable to achieve mutually beneficial agreements to allow for the installation of small cells and other 5G equipment on municipal infrastructure,” the court added. “After all, the numerous wireless antennas that have been erected under the current legislative framework are all a testament to the cooperation between municipalities and carriers once the Minister has approved the location of an antenna.
“In fact, the carriers have been hard-pressed to provide the Court with any evidence to substantiate their fear of adverse consequences for the orderly development of 5G deployment or of arbitrary action by municipalities if the CRTC has no authority to resolve access disputes,” the decision added.
The CRTC earlier this year provided guidance on access to wood poles, another support structure required for telecommunications expansion. In that decision, the regulator said it will embark on a proceeding to address wireless facilities on those structures.
Court also backs CRTC on seamless roaming jurisdiction
In its appeal, Telus also challenged the CRTC’s jurisdiction to require the host network ensure that calls are not dropped when the user on one network is switched to another when roaming. The telecom said this causes friction with the Radiocommunications Act, which is administered by Innovation Canada, because the federal department does not require seamless roaming in its spectrum licensing rules.
The court stated that while ISED does not require seamless roaming, it also doesn’t prohibit it, which flies in the face of Telus’s argument that there is a conflict between the two.
“It is clear that Telus, by offering seamless roaming, would not be offending the terms and conditions of its licence, which does not require seamless roaming but does not prohibit it either,” the decision read. “Indeed, the Minister has stated that licensees may offer seamless roaming as an outcome of negotiations between licensees.”
The court added that had the minister intended to prohibit seamless roaming, he would have made that explicit.
Telus has 60 days to appeal the decision to the Supreme Court.
